Open Access. Powered by Scholars. Published by Universities.®
- Publication Year
- Publication Type
Articles 1 - 30 of 48
Full-Text Articles in Law
Calling Them As He Sees Them: The Disappearance Of Originalism In Justice Thomas's Opinions On Race, Joel K. Goldstein
Calling Them As He Sees Them: The Disappearance Of Originalism In Justice Thomas's Opinions On Race, Joel K. Goldstein
Maryland Law Review
During his first two decades on the Court, Justice Clarence Thomas has been associated with originalism and is often viewed as its leading judicial proponent. Justice Thomas has linked originalism with the effort to limit judicial discretion and to promote judicial impartiality. In cases dealing with many constitutional provisions, Justice Thomas has shown his commitment to originalism by often writing solitary concurrences and dissents advocating an originalist analysis of a problem. Yet in constitutional cases dealing with race, Justice Thomas routinely abandons originalism and embraces the sort of constitutional arguments based on morality or consequentialism that he often discounts. These …
Belling The Partisan Cats: Preliminary Thoughts On Identifying And Mending A Dysfunctional Constitutional Order, Mark A. Graber
Belling The Partisan Cats: Preliminary Thoughts On Identifying And Mending A Dysfunctional Constitutional Order, Mark A. Graber
Faculty Scholarship
This paper sharpens debates over whether the Constitution of the United States and the American constitutional order are presently dysfunctional, the nature of any dysfunctions, and how underlying regime flaws are likely to be corrected. Rather than focusing primarily on constitutional text, this Article explores the dynamic ways in which constitutional processes have influenced and been influenced by the structure of constitutional politics. Constitutional dysfunction is best conceptualized as the failure of a constitutional order rather than as a consequence of a flawed constitutional text, and dysfunction typically occurs when a regime is unable to transition from a dysfunctional constitutional …
Liberalism And The Constitutional Canon: The 1960s And Its Aftermath, Christopher P. Matera
Liberalism And The Constitutional Canon: The 1960s And Its Aftermath, Christopher P. Matera
Schmooze 'tickets'
No abstract provided.
Making A Mountain Out Of A Molehill? Marbury And The Construction Of The Constitutional Canon, Amanda Rinderle, Keith E. Whittington
Making A Mountain Out Of A Molehill? Marbury And The Construction Of The Constitutional Canon, Amanda Rinderle, Keith E. Whittington
Schmooze 'tickets'
No abstract provided.
Canonizing Comparative Constitutionalism: Some Informal Suggestions For Our Schmooze, Sanford Levinson
Canonizing Comparative Constitutionalism: Some Informal Suggestions For Our Schmooze, Sanford Levinson
Schmooze 'tickets'
No abstract provided.
Lessons From The Anticanon (And Some Comparative Questions), Jamal Greene
Lessons From The Anticanon (And Some Comparative Questions), Jamal Greene
Schmooze 'tickets'
No abstract provided.
The Problem With Constitutional Borrowing: Imitation Is Not Necessarily The Sincerest Form Of Flattery, Gordon Silverstein
The Problem With Constitutional Borrowing: Imitation Is Not Necessarily The Sincerest Form Of Flattery, Gordon Silverstein
Schmooze 'tickets'
No abstract provided.
Grootboom At Home And Abroad: Adventures In The Construction Of A Global Constitutional Canon, Heinz Klug
Grootboom At Home And Abroad: Adventures In The Construction Of A Global Constitutional Canon, Heinz Klug
Schmooze 'tickets'
No abstract provided.
The Enforcement Of Socioeconomic Rights And The Global Constitutional Canon, Emily Zackin
The Enforcement Of Socioeconomic Rights And The Global Constitutional Canon, Emily Zackin
Schmooze 'tickets'
No abstract provided.
The Global Constitutional Canon: Some Preliminary Thoughts, Peter E. Quint
The Global Constitutional Canon: Some Preliminary Thoughts, Peter E. Quint
Schmooze 'tickets'
No abstract provided.
Veils, Politics, And Constitutionalism, Jill Goldenziel
Veils, Politics, And Constitutionalism, Jill Goldenziel
Schmooze 'tickets'
No abstract provided.
Subtraction By Addition?: The Thirteenth And Fourteenth Amendments, Mark A. Graber
Subtraction By Addition?: The Thirteenth And Fourteenth Amendments, Mark A. Graber
Faculty Scholarship
The celebration of the Thirteenth Amendment in many Essays prepared for this Symposium may be premature. That the Thirteenth Amendment arguably protects a different and, perhaps, wider array of rights than the Fourteenth Amendment may be less important than the less controversial claim that the Fourteenth Amendment was ratified after the Thirteenth Amendment. If the Fourteenth Amendment covers similar ground as the Thirteenth Amendment, but protects a narrower set of rights than the Thirteenth Amendment, then the proper inference may be that the Fourteenth Amendment repealed or modified crucial rights originally protected by the Thirteenth Amendment. The broad interpretation of …
United States V. Klein, Then And Now, Gordon G. Young
United States V. Klein, Then And Now, Gordon G. Young
Faculty Scholarship
United States v. Klein, decided during Reconstruction, was the first Supreme Court case to invalidate a statutory restriction on federal courts’ jurisdiction. It is the only one to do so by finding a violation of Article III of the Constitution. Klein has been cited in thirty-three United States Supreme Court opinions, and roughly five hundred times each by lower federal courts and law journal articles. Recent commentators have read Klein both too broadly and narrowly. Its central holding is that Congress may not grant federal courts jurisdiction to decide a set of cases on the merits while depriving them …
Foia And The First Amendment: Representative Democracy And The People's Elusive "Right To Know", Barry Sullivan
Foia And The First Amendment: Representative Democracy And The People's Elusive "Right To Know", Barry Sullivan
Maryland Law Review
No abstract provided.
Hollow Hopes And Exaggerated Fears: The Canon/Anticanon In Context, Mark A. Graber
Hollow Hopes And Exaggerated Fears: The Canon/Anticanon In Context, Mark A. Graber
Faculty Scholarship
Students of American constitutionalism should add constitutional decisions made by elected officials to the constitutional canon and the constitutional anticanon. Neither the canonical nor the anticanonical constitutional decisions by the Supreme Court have produced the wonderful results or horrible evils sometimes attributed to them. In many cases, elected officials made contemporaneous constitutional decisions that had as much influence as the celebrated or condemned judicial rulings. More often than not, judicial rulings matter more as a result of changing the political dynamics than by directly changing public policy. Law students and others interested in constitutional change, for these reasons, need to …
Congressional Authority To Interpret The Thirteenth Amendment: A Response To Professor Tsesis, Jennifer Mason Mcaward
Congressional Authority To Interpret The Thirteenth Amendment: A Response To Professor Tsesis, Jennifer Mason Mcaward
Schmooze 'tickets'
No abstract provided.
Involuntary Servitude, Public Accommodations Laws, And The Legacy Of Heart Of Atlanta Motel V. United States , Linda C. Mcclain
Involuntary Servitude, Public Accommodations Laws, And The Legacy Of Heart Of Atlanta Motel V. United States , Linda C. Mcclain
Schmooze 'tickets'
No abstract provided.
Why Originalism Is Of So Little Use In Interpreting The Thirteenth Amendment, Henry L. Chambers
Why Originalism Is Of So Little Use In Interpreting The Thirteenth Amendment, Henry L. Chambers
Schmooze 'tickets'
The 13th Amendment affords two very different visions. One vision limits the 13th Amendment’s scope to ending slavery and involuntary servitude without more. The second expands the 13th Amendment’s scope to include an anti-subordination principle. Proponents of both visions rely on originalism to support their visions. Unfortunately, originalism does not help us reach a clearly correct conclusion regarding the scope of the 13th Amendment.
That is fine, because the core question regarding the interpretation of the 13th Amendment ought to be whether the amendment is constitutionally transformative. That is, does the 13th Amendment announce a constitutional principle that requires that …
Getting Right Without Lincoln, Daniel W. Hamilton
Getting Right Without Lincoln, Daniel W. Hamilton
Schmooze 'tickets'
This short piece is taken from a review of the three important books considered below. This review is part of my current exploration of the historiography of slavery and the Constitution in Civil War legal history.
Brian McGinty, Lincoln and the Court; Stephen C. Neff, Justice in Blue and Gray: A Legal History of the Civil War; Lea VanderVelde, Mrs. Dred Scott: A Life on Slavery’s Frontier
The Slavery And Involuntary Servitude Of Immigrant Workers: Two Sides Of The Same Coin, Maria L. Ontiveros
The Slavery And Involuntary Servitude Of Immigrant Workers: Two Sides Of The Same Coin, Maria L. Ontiveros
Schmooze 'tickets'
No abstract provided.
Liberalism, The Thirteenth Amendment, And The Seeds Of Destruction Of Reconstruction, Leslie F. Goldstein
Liberalism, The Thirteenth Amendment, And The Seeds Of Destruction Of Reconstruction, Leslie F. Goldstein
Schmooze 'tickets'
No abstract provided.
Congressional Authority To Interpret The Thirteenth Amendment, Alexander Tsesis
Congressional Authority To Interpret The Thirteenth Amendment, Alexander Tsesis
Schmooze 'tickets'
No abstract provided.
The Thirteenth Amendment And Constitutional Theory, Earl Maltz
The Thirteenth Amendment And Constitutional Theory, Earl Maltz
Schmooze 'tickets'
No abstract provided.
The Thirteenth Amendment And The Meaning Of Familial Bonds, Julie Novkov
The Thirteenth Amendment And The Meaning Of Familial Bonds, Julie Novkov
Schmooze 'tickets'
No abstract provided.
States Rights, Southern Hypocrisy, And The Crisis Of The Union, Paul Finkelman
States Rights, Southern Hypocrisy, And The Crisis Of The Union, Paul Finkelman
Schmooze 'tickets'
No abstract provided.
The Enduring Legacy Of The Thirteenth Amendment, Robert J. Kaczorowski
The Enduring Legacy Of The Thirteenth Amendment, Robert J. Kaczorowski
Schmooze 'tickets'
No abstract provided.
James Ashley And The Thirteenth Amendment, Rebecca E. Zietlow
James Ashley And The Thirteenth Amendment, Rebecca E. Zietlow
Schmooze 'tickets'
No abstract provided.
A Grievance Based Interpretation Of The Thirteenth Amendment, Lea Vandervelde
A Grievance Based Interpretation Of The Thirteenth Amendment, Lea Vandervelde
Schmooze 'tickets'
No abstract provided.
The Reconstruction Power, Jack M. Balkin
Slavery And The Phenomenology Of Torture, Sanford Levinson
Slavery And The Phenomenology Of Torture, Sanford Levinson
Schmooze 'tickets'
No abstract provided.